New Mexico High Court Rejects Public Textbooks for Private School Students

By Mark Walsh — November 13, 2015 3 min read
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New Mexico’s highest court has struck down the state’s provision of free textbooks to private school students as a violation of the state constitution. In doing so, the court rejected arguments that because New Mexico funds its instructional materials with money from federal mineral leases, those federal funds are not subject to the state constitution.

The New Mexico Supreme Court ruled 5-0 that the program of lending textbooks to private school students violates a provision of the state constitution that prohibits state mineral funds to be used “for the support of any sectarian, denominational or private school, college or university.”

Two parents who are taxpayers in the state, Cathy Moses and Paul F. Weinbaum, challenged the longtime textbook program, which provides instructional materials for students in public and private schools. Two lower courts upheld the program.

But in its Nov. 12 decision in Moses v. Skandera, the state supreme court said New Mexico’s state constitutional language barring aid to private schools is more restrictive that the U.S. Constitution’s First Amendment provision barring any government established of religion. (Under various U.S. Supreme Court decisions, the lending of textbooks to private schools or their students passes muster under the establishment clause.)

In the Moses case, the state high court explained that New Mexico’s state constitutional language was an example of a state “Blaine amendment.” In 1876, U.S. Rep. James G. Blaine of Maine proposed a federal constitutional amendment that would have barred public funds from being controlled by “any religious sect.”

The measure didn’t pass Congress, but several states joining the Union about that time added similar provisions to their state constitutions. (And some, like New Mexico, were required by Congress to include such language in their constitutions as a condition of joining the Union.)

The Blaine Amendment and its state counterparts have been branded by some scholars as examples of anti-Catholic bias.

New Mexico’s state enabling act specifically barred “proceeds arising from the sale or disposal of any lands granted herein for educational purposes” to be used for “sectarian schools.” The state high court said the New Mexico constitution went further by barring state aid not just for religious schools but for all private schools.

“It is clear that private schools in New Mexico have control of what instructional materials will be purchased with their allocation of instructional material funds,” the state high court said. “Private schools benefit because they do not have to buy instructional materials with money they obtain by tuition or donations and they can divert such money to other uses in their schools.”

The court said there was simply no merit to an argument from some intervening private school parents that funds from the federal Mineral Lands Leasing Act that are used for the state’s textbook program are “federal funds which are not subject to state constitutional limitations.

The court discusses how the highest courts of several other states with Blaine provisions in their state constitutions have interpreted the language as barring the loan of textbooks to students in religious schools.

Some scholars and school choice advocates have called for rethinking and doing away with state Blaine amendments, which they view as impediments to vouchers and other school choice programs. Whether a case such as this would make an appropriate vehicle for the U.S. Supreme Court to enter that debate is a now a question that may soon be answered. (Although there is a separate case from Colorado raising the same question awaiting the court’s decision on whether to grant review.)

A version of this news article first appeared in The School Law Blog.